JUDGMENT 1. - The judgment and order under appeal is dated 21.6.2007, passed by learned Additional Sessions Judge (Fast Track) No. 2, Udaipur, convicting and sentencing the accused appellants as under : Devilal:- Under Section 341 I.P.C.-Simple imprisonment for one month and fine of Rs. 50/-. In default of payment of fine to further undergo simple imprisonment for seven days. Under Section 323/34 I.P.C.-Rigorous imprisonment for one year and fine of Rs. 100/-. In default of payment of fine to further undergo rigorous imprisonment for 15 days. Under Section 302 I.P.C.-Imprisonment for life and a fine of Rs. 200/-. In default of payment of fine to further undergo rigorous imprisonment for one month Maganlal:- Under Section 341 I.P.C.-Simple imprisonment for one month and fine of Rs. 50/-. In default of payment of fine to further undergo simple imprisonment for seven days. Under Section 323/34 I.P.C.-Rigorous imprisonment for one year and fine of Rs. 100/-. In default of payment of fine to further undergo rigorous imprisonment for 15 days. Under Section 302/34 I.P.C.-Imprisonment for life and a fine of Rs. 200/-. In default of payment of fine to further undergo rigorous imprisonment for one month. 2. As per the facts unfolded, on 14.5.2006 Shri Babulal (PW-1) informed at Police Station Falasia that at about 8:00 AM his wife Basudi and son Prem went to Badliwala fields. At about 9:00 AM both returned to home, while weeping. Basudi was having serious injures on her head and she stated that at about 8:15 AM Devilal and Maganlal, both sons of Heera intercepted their way and gave beatings with lathis. On making alarm Narain and Dilip came at the spot of occurrence and intervened in between. Babulal then took Basudi and Prem to the Police Station Falasia by a jeep. 3. On basis of the information a case was registered and investigation commenced for the offences punishable under Sections 341, 323/34 Indian Penal Code. 4. The investigating agency during the course of investigation got the medical examination of Basudi and Prem and as per injury reports Ex.P-12 and Ex.P-13 they were having following injuries Basudi:- (1) Lacerated wound - 4 cm x 1 cm - mid scalp. (2) Swelling and tenderness plus no external injury present - left forearm. (3) Swelling and tenderness plus no external injury present - left shoulder. (2) Swelling and tenderness plus no external injury present - left forearm. (3) Swelling and tenderness plus no external injury present - left shoulder. (4) Lacerated wound - 3 cm x 1 cm - mid scalp right side. Premchand:- (1) Lacerated wound - 3.0 x 1.0 cm - mid scalp left side. (2) Abrasion 5.0 x 3.0 cm - left arm mid 1 /3rd. (3) Abrasion 3.0 x 2.0 cm - left forearm antero midial. (4) Bruise - 3 x 2 cm - right arm middle ⅓rd. (5) Bruise - 2 x 2 cm - right forearm lower 1 /3rd. (6) Bruise - 3 x 2 cm - right scapular region. (7) Swelling and tenderness plus no external injury mark present left knee joint. (8) Swelling and tenderness - right lower ⅓rd left side. (9) Swelling and tenderness plus no external injury mark present - both hands palmer surface. 5. On being referred, Smt. Basudi was admitted as an indoor patient at Maharana Bhupal Government Hospital, Udaipur where she died on 15.5.2006, hence, investigation for an offence punishable under Section 302/34 Indian Penal Code was also launched. 6. After regular investigation a police report was filed before the competent Court. The case was committed to the Court of sessions and charges were framed. The accused persons denied the charges and demanded trial, thus, the same commenced. 7. The prosecution supported its case with the aid of 12 witnesses (PW-1 to PW-12), out of whom Premchand (PW-8), Dilip (PW-11) and Narainlal (PW-6) were cited as eye-witnesses. Dr. Anis Ahmed (PW-9) conducted autopsy on the person of Sint. Basudi, thus, he adduced medical evidence. Dr. Navin Goyal (PW-4) too was examined as he provided injury report of deceased Smt. Basudi and Premchand being incharge of Primary Health Centre, Falasia. Pawan Singh (PW-7) and Sangram Singh (PW-10) narrated all the steps taken during the course of investigation being the Investigating Officers. 8. The prosecution also relied upon several documents including Ex.P-8 and Ex.P-9 whereunder recoveries of weapons of offence those are lathis was made on basis of the information given by the accused persons. The accused persons while availing the opportunity given to them to explain the adverse circumstances existing in prosecution evidence stated that the entire evidence is false and concocted. In defence documents Ex.D-1 to Ex.D-5 were produced and exhibited. 9. The accused persons while availing the opportunity given to them to explain the adverse circumstances existing in prosecution evidence stated that the entire evidence is false and concocted. In defence documents Ex.D-1 to Ex.D-5 were produced and exhibited. 9. Learned trial Court after examining the entire evidence available on record held accused Devilal guilty for the offences punishable under Sections 341, 323 and 302 Indian Penal Code and accused Maganlal for the offences punishable under Sections 341, 323/34 and 302/34 Indian Penal Code. Accordingly conviction was recorded and sentence was awarded. 10. In appeal, the argument advanced by counsel for the appellants is that the trial Court failed to appreciate the contradictions existing in the prosecution evidence to the extent that eye-witness PW-8 Premchand stated about giving an axe blow on the head of deceased Basudi, but as a matter of fact no incised wound was found on her head. As such the version of the eye-witness is contrary to the medical evidence. It is also urged that PW-6 Narainlal and PW- 11 Dilip were cited as the eye-witnesses, but as a matter of fact they did not support the prosecution story and the trial Court too did not found their testimony trustworthy even for the corroboration. 11. Learned public Prosecutor in general defended the conviction recorded and the sentence awarded. 12. We have examined the judgment impugned and the entire evidence available on record. 13. So far as the death of Smt. Basudi is concerned, i.e., certainly homicidal one in view of the medical evidence available. Dr.. Anis Ahmed (PW-9) in very definite terms opined that Smt. Basudi died due to antemortem head injury which was sufficient to cause death in ordinary course of nature. The injury available on the person of Smt. Basudi were as under : (1) Lacerated stitched wound 4 cm long forehead mid line. (2) Lacerated stitched wound 3 cm long right parietal occipital 14. PW-8 Premchand is an eye-witness of the incident and as per him Maganlal and Devilal armed with axe and lathis intercepted their way. Devilal gave an axe blow and Maganlal gave a lathi blow to Smt. Basudi. This witness also stated that a reverse axe blow was given to him also at his knee and head. As per this witness an axe blow from the sharpen side was given at his left leg. Devilal gave an axe blow and Maganlal gave a lathi blow to Smt. Basudi. This witness also stated that a reverse axe blow was given to him also at his knee and head. As per this witness an axe blow from the sharpen side was given at his left leg. Suffice to note that neither Basudi nor Premchand as per the injury reports Ex.P- 12 and Ex.P-13 respectively were having any incised wounds. 15. PW-6 Narainlal stated that he saw Devilal and Maganlal armed with lathis, however, nothing is stated by this witness about giving any lathi blow or otherwise giving any assault by these persons to anyone including Basudi and Premchand. This witness on calling went to the residence of informant Babulal, where he found deceased Basudi injured. This witness accompanied Babulal to carry injured persons for their preliminary medical aid and for lodging information at the Police Station. 16. As per Dilip (PW-11) he saw Devilal and Maganlal fighting with Premchand and Basudi. Devilal gave a lathi blow to Basudi and Maganlal was beating Premchand. However, this witness was not found trustworthy by the trial Court. 17. From the discussions of the entire evidence specially the statements given by eye-witness Premchand (PW-8) it is quite clear that the accused persons intercepted Basudi and Premchand on way and gave them beatings. At this juncture, it is worthwhile to notice that on basis of the information provided by the accused persons lathis were recovered at their instance and those were found with blood stains of human origin. The recoveries of the lathi at the instance of Devilal has been established by the adequate evidence, but the trial Court itself held that the recovery on basis of the information said to be given by Maganlal suffers from doubt. We are in absolute agreement with the conclusion drawn by the trial Court in this regard. The house wherefrom the lathi was recovered on information given by Maganlal was locked and that as per Investigating Officer was opened by Maganlal, however, how the key was with him even after his arrest has not been explained. 18. Having considered the, entire evidence available on record the position emerges out is that on 14.5.2006 when Smt. Basudi and Premchand were on way, accused Maganlal and Devilal intercepted them and gave lathi blows. 18. Having considered the, entire evidence available on record the position emerges out is that on 14.5.2006 when Smt. Basudi and Premchand were on way, accused Maganlal and Devilal intercepted them and gave lathi blows. The person of Basudi was having two lathi blows and a definite statement is given by Premchand (PW-8) that the head injury was given by accused Devilal. The weapon of offence is recovered from Devilal, thus, the version given bears confidence. The injury given by him was sufficient to cause death in ordinary course of nature. As such, the finding given by the trial Court that Smt. Basudi died because of injury assigned by accused Devilal suffers from no wrong. 19. The only question requires consideration is that whether while giving such an injury the accused was having any intention to cause death or whether he was having any knowledge that he may give such a bodily injury that may cause death? 20. As already discussed above that accused Devilal was having a lathi with him which was recovered at his instance, the head injury to deceased too occurred by lathi. There is no evidence available on record that the accused in any manner was intending to cause death of deceased Smt. Basudi though he was certainly having an intention to cause bodily injury. The weapon used by the accused is not of such nature that may give an impression or knowledge about death, if used. In such circumstances, the offence of accused Devilal does not travel beyond an offence under Section 304 Part-II Indian Penal Code. 21. So far as accused Maganlal is concerned, he has been convicted with the aid of Section 34 Indian Penal Code. However, no evidence is available on record for any common intention among the two accused persons. As such, his conviction under Sections 323/34 and 302/34 Indian Penal Code is absolutely unwarranted. The same, therefore, deserves to be set aside. The evidence available on record certainly establishes the commission of an offence under Section 341 Indian Penal Code in view of the definite statement given by Premchand (PW-8) that accused persons wrongfully restrained them on way. 22. In view of whatever stated above, this appeal is allowed in part. The conviction of the accused persons under Section 341 Indian Penal Code is affirmed and the sentence awarded thereof is maintained. 22. In view of whatever stated above, this appeal is allowed in part. The conviction of the accused persons under Section 341 Indian Penal Code is affirmed and the sentence awarded thereof is maintained. The conviction of accused Maganlal for the offence punishable under Sections 302/34 and 323/34 is set aside. The conviction of accused Devilal under Section 302 Indian Penal Code and the sentence for that is set aside, however, he is convicted for an offence punishable under Section 304 Part-II Indian Penal Code and he is sentenced to undergo six years rigorous imprisonment with a fine of Rs. 200/- and in default of payment of fine to further undergo rigorous imprisonment for one month. Accused Maganlal be released from custody forthwith, if not required in any other case.Appeal partly allowed. *******